Separate tax returns for spouses according to the CoS
Once again, the Council of State, with a pioneering decision, comes to rationalize and correctly interpret tax law.
In particular, the CoS ruled in Decision 330/2018 that every spouse may submit a separate electronic income tax return.
More specifically, the Supreme Court accepted a taxpayer's appeal against the silent refusal of the tax authority to file a separate electronic income tax statement rather than a joint statement with his wife, to issue a separate statement, to identify separately the outcome of the liquidation, and installments payment.
The decision clarifies the following:
The Income Tax Code (Article 67) provides for the spouses to submit a joint statetement of their income during their marriage. The spouse is responsible for submitting the statement.
Furthermore, their incomes are liquidated separately, i.e. the proportionate tax and each contribution or fee is calculated separately for each spouse.
Based on the amount of the tax debt or claim of each of the spouses, the tax assessment act (Articles 30 and 32 Code of Tax Procedure) is issued.
In this context, the legislation provides for the husband to be the subject of the joint declaration in principle.
However, since each spouse is separately liable for the tax, the fees and the contributions corresponding to his/her income and the tax assessment must also be made to each spouse separately.
However, as is apparent from a relevant document from the Independent Public Revenue Authority to the court, in practice the tax debt corresponding to the spouses’ income is (still) assured in the husband’s name.
In essence, the submission by the husband of a statement for his spouse's income means that the amount resulting from the aggregation of the tax debts or claims of both spouses or after offsetting the tax debt of one to the tax claim of the other against the State, is recorded in the books of the tax administration as receivable or reimbursable in the husband's name. However, this handling is not based on the law.
Furthermore, the court considered that the technical reasons that had been imposed in the past (when the statement was submitted in paper form) that a joint tax return was filed by the spouses, had long since disappeared, in view of the progress of technology and the fact that statements are now submitted electronically.
In conclusion, the CoS considered that there was no obvious public interest reason justifying the mandatory submission of a joint income tax return by the spouses.
The provision of the Income Tax Code, which provides for a joint statement by the spouses, must be interpreted in the light of the principles of the Constitution on equality and the free development of personality, in conjunction with the European Convention on Human Rights: the true meaning of the provision is that the husband submits a joint statement about his spouse's income as long as both spouses consent.
Consent can also be reflected in the submission of a joint statement, whereas, if that is the case, when expressing explicitly to the tax authority the absence of such consent by at least one of the spouses, the spouses retain their right to submit individual statements of income tax.
The fact that consent of both spouses is conditional for joint statement by the husband for his spouse's income is also inferred from the cases where the legislator explicitly provides for a separate statement by the spouses, in the event of termination of marriage, of bankruptcy or of legal aid to one of the two spouses.
G. Samothrakis, J. Panou
Posted on Sunday newspaper "Kathimerini", on 11/03/2018